Provider Terms 2024 - Aged Care Decisions

Aged Care Decisions – Provider Terms

Effective: 1 January 2024

1. General

(a) In consideration of the provider or operator nominated in the Client Introduction Registration Form (Provider, you or your) paying the Fees, Aged Care Reviews Pty Ltd trading as Aged Care Decisions ABN 44 166 080 306 (Aged Care Decisions) agrees to provide the Services to the Provider in accordance with these provider terms (Terms). By receiving the Services, you confirm that you have read, understood and agreed to these Terms.

(b) If you accept these Terms, or otherwise receive the Services, on behalf of an organisation, you warrant to Aged Care Decisions that you are duly authorised to enter into these Terms on behalf of that organisation and the organisation is taken to have accepted these Terms accordingly.

(c) The parties agree that any boiler plate terms attached to or referenced in any Client Introduction Registration Form have no effect and these Terms will be the sole terms governing the relationship between Aged Care Decisions and the Provider.

2. Definitions

In these Terms:

(a) Aged Care Act means the Aged Care Act 1997 (Cth), as amended from time to time.

(b) Australian Consumer Law means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

(c) Background IP any Intellectual Property Rights owned by a party as at the Commencement Date or which are created or derived independently by it of these Terms and includes all improvements to such Intellectual Property Rights.

(d) Business Days means day that is not a Saturday, Sunday or public holiday in Gold Coast, Queensland

(e) Care Services includes Residential Aged Care Services and Home Care Services.

(f) Claims means all losses, liabilities, demands, claims, demands, suits, litigation, costs and expenses of any kind.

(g) Client Introduction has the meaning given to that term in clause 3.2(a).

(h) Client Introduction Alert means the method through which a Client Introduction for Residential Aged Care Services is provided electronically to the Provider (in email or electronic format). A Client Introduction Alert, at a minimum, shall contain the personal, clinical and contact details of the Potential Client, and specify a particular Residential Aged Care Facility or Home Care service operated by the Provider that is the subject of the Client Introduction.

(i) Client Introduction Recipient means a person or an entity that has completed a Client Introduction Registration Form which has been verified and approved by Aged Care Decisions.

(j) Client Introduction Registration Form means a home care client introduction registration form completed and returned to Aged Care Decisions, whether electronically or in hard copy.

(k) Confidential Information means any information:

(i) relating to the business and affairs of a party;

(ii) relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;

(iii) relating to these Terms;

(iv) relating to the Intellectual Property Rights of a party;

(v) which is by its nature confidential;

(vi) which is designated as confidential by a party; or

(vii) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.

(l) Consequential Loss means any consequential, indirect, incidental or special loss including without limitation loss or use of data, loss of profit, loss of revenue, business interruption, loss of business, loss of opportunity, loss of reputation or loss in connection with breach of third party contracts or arrangements.

(m) Data Protection Legislation means:

(i) the Privacy Act 1988 (Cth) (Privacy Act) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;

(ii) the Australian Privacy Principles contained in Schedule 1 of the Privacy Act; and

(iii) all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Website is being provided that relate to the processing of personal information.

(n) Fees means any fees payable by the Provider to Aged Care Decisions as calculated in accordance with clause 4 and clause 5 of these Terms (as applicable).

(o) Home Care Services has the same meaning as the term ‘home care’ as defined in the Aged Care Act 1997 (Cth) (as amended from time to time).

(p) Insolvency Event means any of the following events concerning a party:

(i) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;

(ii) if the party is unable to pay its debts when they become due and payable;

(iii) if the party ceases to carry on business; or

(iv) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.

(q) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.

(r) Potential Client means a person, or a person nominated by or acting on behalf of another person, who seeks Home Care Services or Residential Aged Care Services (as applicable).

(s) Prior Contact Clearance means the provision of a call transcript, call recording or other evidence by Aged Care Decisions to the Provider wherein the Potential Client confirms that they have not had active two way discussions with the Provider for the provision of services by the Provider in the period between 90 days prior and 1 day prior to the Client Introduction.

(t) Prior Contact Client Introduction means a Client Introduction where (i) no Prior Contact Clearance has been provided by Aged Care Decisions to the Provider, or (ii) in the period 90 days prior to 1 day prior to the Client Introduction, the Referred Client or a third party representative of the Referred Client (being a direct family member or health professional) has been engaged in written active two way discussions for the provision of services by the Provider to that Referred Client, and such discussions had not been abandoned prior to the Client Introduction, with such discussions being evidenced by time stamped communications between the Provider and the third party representative.

(u) Privacy Policy means Aged Care Decisions’ privacy policy located on the Website at https://agedcaredecisions.com.au/privacy-policy/, as amended from time to time.

(v) Referred Client means a person, or a person nominated by or acting on behalf of another person, who seeks Home Care Services or Residential Aged Care Services (as applicable) that has been referred to the Provider via a Client Introduction from time to time, regardless of whether the Client Introduction becomes a Successful Client Introduction.

(w) Residential Aged Care Facility means any building, set of buildings, location or other structure within which the Provider provides Residential Aged Care Services, and includes any building within which the Provider provides services of a kind, similar to, or marketed similar to Residential Aged Care Services, and includes without limitation buildings known as a ‘supported residential service’, ‘private aged care’, or ‘retirement service’.

(x) Residential Aged Care Services has the same meaning as the term ‘residential care’ as defined in the Aged Care Act, and includes services of a kind, similar to or marketed in a manner similar to residential care as defined in the Aged Care Act.

(y) Respite – Low Care means the type of care known as ‘low level residential respite care’ as defined in the Aged Care Act, and Part 3 of the Approval of Care Recipients Principles 2014 (Cth) made pursuant to the Aged Care Act, as amended from time to time.

(z) Respite – Private Care means the type of care whereby short term care services are provided, and the Potential Client is not utilising an approval for either Respite – Low Care or Respite – High Care, and for the avoidance of doubt, includes short term care services or short term accommodation provided in a cottage respite or independent living unit.

(aa) Respite – High Care means the type of care known as ‘high level residential respite care’ as defined in the Aged Care Act and Part 3 of the Approval of Care Recipients Principles 2014 (Cth) made pursuant to the Aged Care Act, as amended from time to time.

(ab) Self Managed Client means a Referred Client for Home Care Services, but who contracts with the Provider for the Provider to charge the Self Managed Client a lower care management and administration fee, wherein the Self Managed Client takes responsibility for some or all aspects of care coordination or care management.

(ac) Services means the provision of Client Introductions to the Provider in relation to Potential Clients for Home Care Services or Residential Aged Care Services (as applicable).

(ad) Successful Client Introduction means the execution of an agreement or other arrangement evidencing a contractual relationship for services between the Provider and the Potential Client arising from or in connection with a Client Introduction, but does not include a Prior Contact Client Introduction.

3. Services

3.1 Registration

(a) In order to receive the Services, you must become a registered Client Introduction Recipient of Aged Care Decisions. You may submit a Client Introduction Registration Form in writing to us to apply to become a Client Introduction Recipient. It is free of charge for you to submit an application to be registered as a Client Introduction Recipient.

(b) Aged Care Decisions will review each Client Introduction Registration Form within a reasonable time of receipt and may approve or reject a Client Introduction Registration Form in its discretion.

(i) in the Client Introduction Registration Form;

(ii) related to the Provider’s occupancy and availability data for any Potential Clients, which must be updated at least every 7 days during the Term;

(iii) related to the placements of Client Introductions in connection with the Provider;

(iv) related to any Successful Client Introduction who subsequently require or otherwise request changes to their Care Services, including without limitation re-homing for Residential Aged Care Services; and

(v) as otherwise reasonably requested by us to perform the Services.

3.2 Client Introductions

(a) Subject to:

(i) the Provider becoming a registered Client Introduction Recipient under clause 3.1(b);

(ii) the Provider agreeing to pay the Fees for each Successful Client Introduction; and

(iii) regular review by Aged Care Decisions of information you make available to Aged Care Decisions, Aged Care Decisions may provide the Provider with details of Potential Clients from time to time (Client Introduction).

(b) The parties agree that a Client Introduction will remain valid for 24 months from the date that a given Potential Client is initially referred to the Provider or the Potential Client is subsequently referred to the Provider on a further occasion by Aged Care Decisions with the Potential Client’s consent.

(c) If the Provider does not agree that a Client Introduction is a Successful Client Introduction, the Provider must provide evidence, including without limitation time-stamped evidence of communications with the Potential Client, that evidence its active discussions with such Potential Client. In the absence of such evidence, the Provider shall be liable to pay the relevant Fee with respect to such Client Introduction.

(d) The Provider acknowledges and agrees that Aged Care Decisions is under no obligation to provide Client Introductions to the Provider, and the provision of Client Introductions is at the sole discretion of Aged Care Decisions.

(e) The provision of Client Introductions by Aged Care Decisions is not exclusive to any registered Client Introduction Recipients. The Provider acknowledge and agree that Aged Care Decisions may provide Client Introductions in its absolute discretion to any provider (whether or not registered as a Client Introduction Recipient at the time of the Client Introduction).

(f) Aged Care Decisions must disclose to each Potential Client that it may receive the Fee if the Potential Client accepts any services provided by the Provider in connection with a Client Introduction.

(g) In receiving the Services, the Provider must:

(i) comply with all applicable laws and regulations; and

(ii) not infringe or otherwise violate the rights of any Potential Client.

3.3 Co-operation

When exercising their rights and performing their obligations under these Terms, Aged Care Decisions and the Provider must:

(a) work collaboratively and do all things reasonably necessary to facilitate the placement of Client Introductions;

(b) act in good faith having regard to the business objectives of each party;

(d) use reasonable endeavours to co-operate with each other; and

(e) perform their obligations in accordance with these Terms.

3.4 Additional Services for Actual Annual Placement Fees

Subject to the Provider paying the Annual Placement Fees under these Terms, Aged Care Decisions will provide additional services to the Provider as agreed in writing between the parties from time to time.

3.5 Additional Provider Obligations

In consideration of Aged Care Decisions providing the Services to the Provider, the Provider acknowledges and agrees that it shall not disclose the details of any Referred Client to any competitor of Aged Care Decisions or any provider of Care Services, where the primary purpose of such disclosure is to generate a referral payment.

4. Fees for Home Care Services

4.1 General

This clause 4 applies if the Services provided to the Provider relate to Home Care Services. The Client must pay the Fees set out in this clause 4 for each Successful Client Introduction for Home Care Services.

4.2 Home Care Package

(a) The Provider must pay the Fees to Aged Care Decisions for each Successful Client Introduction with respect to Home Care Services calculated as follows:

(i) Home Care Package Level 1 – 11.0% of the Potential Client’s Annual Package Value.

(ii) Home Care Package Level 2 – 11.0% of the Potential Client’s Annual Package Value.

(iii) Home Care Package Level 3 – 9.5% of the Potential Client’s Annual Package Value.

(iv) Home Care Package Level 4 – 8.0% of the Potential Client’s Annual Package Value.

(v) Private paying client – a fee calculated in the same manner as outlined in clause 4.2(a)(i) – being a fee that would have been charged if the Potential Client’s Annual Package Value is for a Level 1 Home Care Package.

(b) In this clause 4.2, the Potential Client’s Annual Package Value will be calculated as follows:

[Daily Home Care Subsidy for that particular Home Care Package Level, as published by the Department of Health, that being the daily rate applicable as at the date of invoice] multiplied by 365.

4.3 Short Care Rebate

(a) If applicable and subject to clause 4.3(b), the following discounts shall apply to the Fee payable under clause 4.2:

(i) if a Successful Client Introduction ceases to receive Home Care Services within 90 days of commencing receipt of Home Care Services from the Provider, a 75% discount shall be applied to the Fee;

(ii) if a Successful Client Introduction ceases to receive Home Care Services between 90 days and 180 days of commencing receipt of Home Care Services from the Provider, a 50% discount shall be applied to the Fee;

(b) The discounts in clause 4.3(a) shall only apply if the Successful Client Introduction:

(i) dies; or

(ii) commences occupancy with a Residential Aged Care Service on a permanent basis.

For the avoidance of doubt, the discounts shall not apply where a Successful Client Introduction terminates receipt of Home Care Services from the Provider for any other reason.

4.4 Additional fees for Residential Aged Care Services

If the Provider is also a provider of Residential Aged Care Services and a Successful Client Introduction for Home Care Services subsequently receives Residential Aged Care Services from the Provider, then the Provider must pay Aged Care Decisions the fee set out in clause 5.2(a) upon that Successful Client Introduction receiving the Residential Aged Care Services.

4.5 Actual Annual Placement Fees

(a) This clause only applies where the parties have agreed that the Annual Placement Target will apply.

(b) In this clause 4.5:

(i) Actual Annual Placement Fee means the Placement Fee that would be due and payable by the Provider during the Placement Period;

(ii) Annual Placement Target means the target number of placements for each Placement Period, which for the first Placement Period will be as agreed in writing between the parties;

(iii) Estimated Annual Placement Fee means, for each Placement Period, the amount calculated by multiplying the Placement Fee by the Annual Placement Target;

(iv) Placement Fee means the amount which is payable by the Provider for each complying placement as amended in accordance with these Terms as calculated in accordance with this clause 4; and

(v) Placement Period means the 12-month period commencing on 1 April and ending on 31 March for each year during the Term, unless otherwise agreed between the parties in writing.

(c) The Provider will pay 1/12th of the Estimated Annual Placement Fee to Aged Care Decisions in 11 equal instalments during the Placement Period within 14 days of receipt of a valid tax invoice, with the first instalment to be invoiced on the commencement of each Placement Period. The 12th instalment will paid in accordance with clause 4.5(d).

(d) Within 30 days after the end of each Placement Period, Aged Care Decisions will give written notice to the Provider of its calculation of the Actual Annual Placement Fee for the relevant Placement Period. If:

(i) the Actual Annual Placement Fee is greater than the amount of the Estimated Annual Placement Fee paid to date, Aged Care Decisions will include such difference as an additional line item in its next invoice to the Provider issued under clause 4.5(c), or where these Terms have been terminated, the Provider must pay the difference to Aged Care Decisions within 14 days of receipt of a tax invoice for such amount; or

(ii) the Actual Annual Placement Fee is less than the amount of the Estimated Annual Placement Fee paid to date, Aged Care Decisions must credit the difference to the Provider on its next invoice to the Provider, or where these Terms have been terminated, pay the difference to the Provider and issue a revised tax invoice or invoices as required to allow for such credit.

(e) The parties will use best endeavours to agree a revised Annual Placement Target and Annual Placement Fee prior to the commencement of each Placement Period using methodology consistent with the determination of the prior Annual Placement Target and Annual Placement Fee. If a revised Annual Placement Target and/or Placement Fee cannot be agreed, the Annual Placement Target and/or Placement Target for the previous Placement Period shall apply.

4.6 Self Managed Client Discount

(a) If applicable and subject to clause 4.6(b), the following discounts shall apply to the Fee payable under clause 4.2:

(i) a 10% discount on the invoice payable under clause 4.2 if, and only if, the Successful Client Introduction relates to a Self Managed Client; and

(ii) a further and additional 20% discount on the invoice payable under clause 4.2 if, and only if, the Referred Client is and remains a Self Managed Client on the date 150 days after the Successful Client Introduction.

(b) The discount nominated in clause 4.6(a)(ii) shall:

(i) Only be made available to the Provider if, and only if, any first or original invoice to which the Successful Client Introduction relates has been paid, or remains within agreed payment terms;

(ii) Be offered by Aged Care Decisions as a credit against any outstanding invoice that the Provider has with Aged Care Decisions;

(iii) Be offered as a refund to the Provider if clause 4.6(b)(i) applies and the Provider has no outstanding invoice with Aged Care Decisions.

5. Fees for Residential Aged Care Services

5.1 General

This clause 5 applies if the Services provided to the Provider relate to Residential Aged Care Services. The Client must pay the Fees set out in this clause 5 for each Successful Client Introduction for Residential Aged Care Services.

5.2 Permanent Residential Aged Care

(a) The Provider must pay a fee of $2,950.00 plus GST to Aged Care Decisions for each Successful Client Introduction with respect to permanent Residential Aged Care Services.

(b) If a Successful Client Introduction under clause 5.2(a) ceases to receive the permanent Residential Aged Care Services within 21 days of commencing their occupancy with the Provider, an amount equal to 60% of the Fee paid by the Provider under clause 5.2(a) will be credited or refunded to the Provider.

(i) takes up occupancy at an alternate facility operated by the Provider, provided that the facility is not subject to a Client Introduction Alert;

(ii) at the time of sending a Client Introduction Alert to the Provider, the facility was not listed as ‘active’ with Aged Care Decisions; and

(iii) the Provider and its officers, employees and agents did not actively promote or otherwise encourage the Successful Client Introduce to move to the alternate facility,

an amount equal to 50% of the Fee paid by the Provider under clause 5.2(a) will be credited or refunded to the Provider.

5.3 Residential Respite – Low Care

(a) If applicable, the Provider must pay a Fee of $300.00 plus GST to Aged Care Decisions for each Successful Client Introduction that receives respite services in a Residential Aged Care Facility and receives the benefit of an Australian Government subsidy approval for Respite – Low Care services.

(b) Any Fee paid under clause 5.3(a) will be deducted from future Fees if such Successful Client Introduction subsequently receives permanent Residential Aged Care Services under clause 5.2.

5.4 Residential Respite – High Care or Private Care

(i) an Australian Government subsidy approval for Respite – High Care services; or

(ii) Respite – Private Care services.

(b) Any Fee paid under clause 5.4(a) will be deducted from future Fees if such Successful Client Introduction subsequently receives permanent Residential Aged Care Services under clause 5.2.

5.5 Actual Annual Placement Fees

(a) This clause only applies where the parties have agreed that the Annual Placement Target will apply.

(b) In this clause 5.5:

(i) Actual Annual Placement Fee means the Placement Fee that would be due and payable by the Provider during the Placement Period;

(ii) Annual Placement Target means the target number of placements for each Placement Period, which for the first Placement Period will be as agreed in writing between the parties;

(iii) Estimated Annual Placement Fee means, for each Placement Period, the amount calculated by multiplying the Placement Fee by the Annual Placement Target;

(iv) Placement Fee means the amount which is payable by the Provider for each complying placement as amended in accordance with these Terms as calculated in accordance with this clause 5; and

(v) Placement Period means the 12-month period commencing on 1 April and ending on 31 March for each year during the Term, unless otherwise agreed between the parties in writing.

(i) the Actual Annual Placement Fee is greater than the amount of the Estimated Annual Placement Fee paid to date, Aged Care Decisions will include such difference as an additional line item in its next invoice to the Provider issued under clause 5.5(c), or where these Terms have been terminated, the Provider must pay the difference to Aged Care Decisions within 14 days of receipt of a tax invoice for such amount; or

6. Invoicing

6.1 General

(a) Aged Care Decisions will be entitled to invoice the Provider at any time after a Successful Client Introduction occurs.

(b) Except as provided in clauses 4.5(c) or 5.5(c), or otherwise agreed between the parties, the Provider must pay all invoices within 45 days of the date of issue.

(c) If the Provider fails to comply with its obligations under clause 7.1, the Provider must pay an additional fee of 5% of the relevant Fee for that Successful Client Introduction to Aged Care Decisions without set-off, delay or deduction.

(d) If the Provider fails to pay any amounts owing under these Terms, the Provider must pay:

(i) interest at the rate of 12% per annum will be payable on any monies not paid by the Provider by the date the relevant invoice is due and payable; and

(ii) all of Aged Care Decisions’ reasonable costs and disbursements incurred in pursuing any recovery action of such amounts (including without limitation any debt collection costs) as a liquidated debt payable on demand.

(e) Where the Provider seeks to claim a discount, credit or rebate in accordance with these Terms, or disputes that a Client Introduction is a Successful Client Introduction, the Provider must do so in writing to Aged Care Decisions within fourteen (14) days of receiving an invoice or notification of Successful Client Introduction, failing which the Fee will stand as a liquidated debt payable on demand by the Provider. Where the Provider makes a dispute or claim pursuant to this sub-clause 6.1(e) within the time required, Aged Care Decisions shall respond in writing to the Provider within thirty (30) days with its response to the dispute or claim – and include any necessary facts relied upon by Aged Care Decisions.

6.2 Referral of Client Introductions to other parties

(a) The Provider acknowledges and agrees that it is liable to pay all fees arising from or in connection with a Client Introduction, as if that Client Introduction was a Successful Client Introduction for the purposes of these Terms, if the Provider refers, makes known or otherwise discloses such Client Introduction to any other person (Referred Client Introduction), including without limitation a related body corporate of the Provider (as that term is defined in section 50 of the Corporations Act 2001 (Cth)), who subsequently provides such person with Care Services.

(b) Aged Care Decisions may recover all fees arising in connection with such Referred Client Introduction as a liquidated debt payable on demand by the Provider.

(c) The Provider acknowledges that Aged Care Decisions may suffer financial and other loss and damage if a Referred Client Introduction is made by the Provider and Aged Care Decisions is not paid all fees arising from or in connection with such Referred Client Introduction pursuant to clause 6.2(a).

7. Reporting

7.1 General

The Provider must, as soon as reasonably practicable and in any event within 10 Business Days, report to Aged Care Decisions, in a form and means agreed with Aged Care Decisions (including by data feed), the following information in respect of any agreement or other arrangement made in connection with a Client Introduction:

(a) confirmation of initial contact with Potential Client; and

(b) confirmation of a Successful Client Introduction.

7.2 Data Feed

(a) The parties may agree to share information regarding new client relationship status for Potential Clients and related data by electronic data feed from time to time.

(b) If Aged Care Decisions agrees to accept a data feed under clause 7.2(a), the following provisions apply:

(i) the Provider warrants that:

(A) the data is true and accurate;

(B) it is authorised to establish the data feed with Aged Care Decisions and provide the licence under clause 7.2(b)(ii), and it has all necessary consents and other approvals to provide any data feed data and the licence under clause 7.2(b)(ii) to Aged Care Decisions so that it may lawfully use the same; and

(C) the data feed and any data feed data does not infringe or violate any Intellectual Property Rights or other rights of any third party, or breach any applicable laws or regulations; and

(ii) the Provider grants to Aged Care Decisions a licence to use, disclose, display, rearrange or otherwise deal with any data feed data at any time and in any way that may be necessary or desirable for the purposes of providing the Services.

7.3 Quarterly Checkpoints for Annual Placement Targets

(a) If clause 4.5 applies, the parties will agree to meet at least quarterly to review the operation of these Terms, including:

(i) whether the delivery of Services by Aged Care Decisions is in line with the Annual Placement Target for that Placement Period; and

(ii) opportunities to create further efficiencies in the delivery of the Services and to address issues that may be inhibiting Aged Care Decisions’ ability to deliver the Services to the Provider.

(b) Where issues are identified, the parties will work collaboratively to develop an action plan to address such matters and will cooperate in the implementation of such plan.

8. Intellectual Property Rights

(a) Each party acknowledges and agrees that the other party’s Background IP is and remains the exclusive property of the other party, or where applicable, the third party licensor from whom the other party derives the right to use them.

(b) The Provider grants Aged Care Decisions a non-exclusive, royalty-free, non-sublicensable right to use the Provider’s Background IP for the purpose of Aged Care Decisions providing the Services.

(c) All Intellectual Property Rights in, to and in connection with the Services (excluding any Background IP) are and shall remain the property of Aged Care Decisions.

(d) Each party must use reasonable endeavours to prevent any infringement of the other party’s Intellectual Property Rights and shall promptly report to the other party any such infringement that comes to its attention.

9. Confidentiality

(a) Each party agrees to, and shall ensure each of their Personnel:

(i) hold in strict confidence all Confidential Information of the other party;

(ii) use the Confidential Information solely to perform or to exercise their rights under these Terms;

(iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and

(iv) use their reasonable endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.

(b) The obligations in clause 9 do not apply:

(i) where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms;

(ii) to the extent necessary to enable disclosure required by law; or

(iii) to any disclosure agreed in writing between the parties.

10. Term, termination and suspension

10.1 Term

These Terms commence on the Commencement Date and continue until terminated under this clause 10 (Term).

10.2 Termination

(a) A party may terminate these Terms at any time without cause by providing at least 30 days’ prior written notice to the other party.

(b) Aged Care Decisions may terminate or suspend these Terms immediately on written notice to the Provider if the Provider:

(i) materially breaches these Terms and, where capable of remedy, fails to remedy that breach within 7 days of receiving notice from Aged Care Decisions;

(ii) suffer an Insolvency Event.

10.3 Obligations on termination or expiry

(a) On termination or expiry of these Terms:

(i) Aged Care Decisions will immediately cease providing the Services;

(ii) the Provider must pay Aged Care Decisions for all Fees arising from or in connection with any Client Introductions provided by Aged Care Decisions up to and including the date of termination;

(iii) any licence granted under clause 7.2(b)(ii) will immediately cease;

(iv) each party must immediately cease to refer to itself as affiliated with the other party; and

(v) each party must, promptly on request by the other party, return to the party or destroy all Confidential Information of the other party except to the extent such Confidential Information is required to be retained by a party for the purposes of complying with an applicable law.

(b) Clauses 2, 3.1(c), 3.2(b), 3.5, 6.2 and 8 to 13 survive the expiry or earlier termination of these Terms.

10.4 Suspension

Aged Care Decisions may suspend the provision of the Services to the Provider by providing written notice to the Provider if the Provider fails to pay any undisputed invoices to Aged Care Decisions by the due date. Aged Care Decision will resume providing the Services upon all such overdue invoices being paid by the Provider.

11. Limitation of liability

11.1 Exclusions

To the extent permitted by law:

(a) and without limiting the rights you may have under the Australian Consumer Law, Aged Care Decisions expressly disclaims all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement;

(b) Aged Care Decisions shall have no liability for:

(i) or in connection with any agreement or other arrangement arising from the Services;

(ii) any loss or damage caused by errors or omissions in any information or instructions that the Provider provides to Aged Care Decisions in connection with the Services;

(c) Aged Care Decisions makes no representations and provides no warranties about the suitability or performance of any Potential Client introduced to the Provider by Aged Care Decisions;

(d) the Provider shall be solely responsible, as against Aged Care Decisions, for any opinions, recommendations, or other conclusions made or actions taken by the Provider or any other third party based (wholly or in part) on the results obtained from the Provider’s use of the Services; and

(e) Aged Care Decisions expressly disclaims any implication of appointment of an agent of a Provider or Potential Client in connection with the Services.

11.2 Maximum liability

(a) To the extent permitted by law, the total liability of each party for any Claims arising under or in connection with these Terms is limited in the aggregate to the total Fees actually paid to Aged Care Decisions by the Provider in the 12-month period preceding the relevant Claim.

(b) To the maximum extent permitted by law, neither party shall be liable for any Consequential Loss arising out of or in connection with these Terms.

(c) Each party must mitigate any loss they suffer as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.

11.3 Australian Consumer Law

If the Australian Consumer Law applies to the supply of services under these Terms, Aged Care Decisions acknowledges and agrees that its services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Provider will apply:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value

You are also entitled to be compensated for any other reasonably foreseeable loss or damage.

If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

12. Privacy

(a) Each party agrees to comply with all applicable requirements of the Data Protection Legislation in connection with the Services.

(b) In accepting receipt of the Services, the Provider agrees to Aged Care Decisions collecting, using or disclosing any personal information in the manner contemplated by its Privacy Policy.

(c) Aged Care Decisions may disclose and exchange information with a Credit Reporting Body (as defined by the Privacy Act 1998) to: administer Aged Care Decisions’s dealings and potential dealings with the Provider; to supply the Services; to assess the Provider’s credit worthiness; to receive and process payments for the supply of the Services; or to exchange information as to the status of any amounts owing to Aged Care Decisions.

13. General

(a) You acknowledge and agree:

(i) where a variation to these Terms would affect you in a materially adverse way, Aged Care Decisions may vary these Terms by notifying you at least 14 days prior to the variation coming into effect. If you do not agree to a variation under this clause, you may terminate these Terms without penalty by providing Aged Care Decisions with written notice prior to the date that the variation will take effect; and

(ii) where a variation to these Terms would not affect you in a materially adverse way, Aged Care Decisions may vary these Terms by providing you with 14 days’ notice of the variation.

(b) These Terms constitute the entire agreement between us and you in relation to the subject matter. These Terms embody the entire agreement between the parties.

(c) These Terms are governed by the laws of the Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

(d) A clause or part of a clause of these Terms that is invalid, unenforceable or illegal may be severed from these Terms and the remaining clauses or parts of the clause of these Terms will remain in force.

(e) A right under this document may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

(f) These Terms are intended to be read in conjunction with Aged Care Decisions’ website terms located on our website at https://agedcaredecisions.com.au/terms (Website Terms) and any other terms and conditions you have accepted as part of the Services, as amended from time to time. If there is any inconsistency between these Terms, the Website Terms or any other terms and conditions accepted, these Terms will prevail to the extent of the inconsistency.